Rowley v. Mayor and City Council of Baltimore, 199

• Decision Date: 01 September 1984
• Docket Number: No. 199,199
• Citation: 60 Md.App. 680,484 A.2d 306
• Parties: Catherine ROWLEY v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al. ,
• Court: Court of Special Appeals of Maryland

Page 680

60 Md.App. 680

484 A.2d 306

Catherine ROWLEY v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.

No. 199, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Dec. 6, 1984.

Michael Marshall, Baltimore (Henry L. Belsky, Steinberg, Schlachman, Potler, Belsky & Weiner, P.A., Baltimore, on brief), for appellant.

James L. Prichard and William R. Phelan, Jr., Asst. City Sols., Baltimore City (Benjamin L. Brown, City Sol., Baltimore, on brief), for appellees.

Argued before GILBERT, C.J., and WILNER, and GARRITY, JJ.

GARRITY, Judge.

The primary issue presented in this appeal is whether the City of Baltimore, as owner of a building, may be held liable for injuries sustained by an employee of its independent contractor as a result of that contractor's negligence. Our discussion of this issue will involve the legal relationship between three parties: an employer of an independent contractor (Mayor and City Council of Baltimore), an independent contractor ¹ (Facilities Management, Inc.), and an employee of the independent contractor, the appellant (Catherine Rowley).

The appellant instituted an action in the Circuit Court for Baltimore County against the Mayor and City Council of Baltimore (City), seeking damages for injuries received as a result of being battered and raped while she was on duty as a security guard at the Baltimore Convention Center. ² Appellant claimed that it was due to the negligence of Facilities Management, Inc. (FMI) in failing to repair a broken lock on an exterior door to the convention center that an unknown assailant was able to gain entrance to the center and thus be in a position to attack her. At the close of the appellant's case, the court (Hinkel, J.) granted the City's motion for a directed verdict on the ground that the City was not responsible for FMI's negligence in the performance of its contractual duties.

The Facts

As owner of the facilities, the City, acting through the Civic Center Commission, hired Hyatt Management Corp. (HMC) as an independent contractor to operate and manage the Baltimore Convention Center as well as the Baltimore Civic Center. Although the City retained the general power to oversee the operation of those facilities to ensure that the purposes of the contract were being carried out, it relinquished its control over the day-to-day operation of the facilities. HMC, with the City's acquiescence, subsequently assigned its interests and duties under the contract to FMI. The contract, which set forth FMI's duties, provided in pertinent part that:

HMC [FMI] shall have the full responsibility for management and direction of the Baltimore Convention Center, Baltimore Civic Center and Baltimore Convention Bureau, which shall include the performance of the following:

* * *

e. Building operations and maintenance, including but not limited to purchasing, payroll, fire prevention, security, routine repairs, janitorial services and energy conservation.

In performance of its duties under this contract, FMI employed the appellant to work as a security guard at the convention center during the midnight shift. The duties of a security guard were to notify management of any property that was damaged, stolen or missing, report any water leaks or lighting problems, and investigate and report any unusual activity in the building. Upon discovering a potentially dangerous situation, a guard was supposed to notify the Baltimore City Police Department and allow it to deal with the situation. Security personnel, therefore, were not issued weapons.

While the appellant was on duty one night, she heard an unusual noise and left the security office to investigate. She was immediately attacked by an assailant who had apparently gained entry into the convention center through a door that had a broken lock. ³ Testimony revealed that the lock had been broken for approximately 11 months prior to this incident, and that the appellant, as well as several other guards, had reported its condition to their supervisors at FMI. ⁴ Despite their knowledge of the existence of an unsafe condition, FMI failed to repair the lock or otherwise secure the door. In fact, several guards employed by FMI testified that they were forbidden from temporarily securing the door with a chain. ⁵

The appellant has alleged that because the Director of Security at FMI was a Baltimore City police detective detailed to the convention center, notice to her supervisors at FMI was notice to the City. Detective Robert Leeman testified that during his employment as Director of Security he remained a detective for the Baltimore City Police Department. Although his salary was paid by the City to qualify him for a pension, the City was reimbursed for those payments by FMI. Detective Leeman further testified that he reported to either James Smithers, Director of the Building for FMI or Wayne Lalor, FMI's Director of Operations. The trial court ruled that Detective Leeman was not an agent for the City, and that without proper notice of the defective lock, the City could not be held liable for FMI's negligence in failing to repair it.

I. Employer's Liability for Negligence of its Independent Contractor

We now focus on the issue of whether an employer of an independent contractor may be held liable for injuries sustained by an employee of its independent contractor as a result of that contractor's negligence.

In Park v. U.S. Lines, 50 Md.App. 389, 404, 439 A.2d 10 (1982), this Court accepted the rule concerning an owner's liability for the torts of his independent contractor as articulated in the Restatement (Second) of Torts, § 408, which states:

Except as stated in §§ 410-429, an employer of independent contractors is not liable for physical harm caused to another by an act or omission of the contractor or his servants. ⁶

The rationale behind this rule is that an employer has no control over the acts of the independent contractor. Gardenvillage Realty Corp. v. Russo, 34 Md.App. 25, 35, 366 A.2d 101 (1976).

In assessing the liability of an employer under the Restatement and the law of this State, however, it is clear that the mere employment of an independent contractor will not always relieve the owner from liability for damages caused by the contractor. Samson Construction Co. v. Brusowankin, 218 Md. 458, 464, 147 A.2d 430 (1958); Washington Suburban Sanitary Commission v. Grady Development Corp., 37 Md.App. 303, 314, 377 A.2d 557 (1977). Indeed, Maryland has recognized such a myriad of exceptions to the rule of non-liability that its continued viability as a general principle of law has become suspect. Id.

Appellant has raised three specific exceptions that would operate to impose liability on the City for her injuries arising from the negligent acts of its independent contractor. These exceptions are:

1. The injury was caused by the thing contracted to be done, not by collateral negligence.

2. The existence of a non-delegable duty to provide the contractor's employees with a safe working place.

3. The existence of a non-delegable duty to provide a safe building open to the public.

A. Liability for the Thing Contracted to be Done

One instance where an employer may be held liable for the negligent performance of the contractor's work is when the injury was directly caused by "the thing contracted to be done", rather than by the "collateral" or "casual" act of negligence on the part of the contractor. Philadelphia, Baltimore & Washington Railroad Company v. Mitchell, 107 Md. 600, 606, 69 A. 422 (1908); Samuel v. Novak, 99 Md. 558, 569, 58 A. 19 (1904); Deford v. State, Use of Keyser, 30 Md. 179 (1869); Washington Suburban Sanitary Commission v. Grady Development Corp., 37 Md.App. at 314, 377 A.2d 557. Gardenvillage v. Russo, 34 Md.App. at 40, 366 A.2d 101.

It is well established that while the employer will not be liable for an injury caused by the negligence of his independent contractor in a matter collateral to a contract, he will be liable if the injury could have been anticipated by him as a probable consequence of the work assigned to the contractor, and the employer took no precaution to prevent it. Weilbacher v. Putts Co., 123 Md. 249, 256, 91 A. 343 (1914); Philadelphia, Baltimore & Washington R.R. Co. v. Mitchell, 107 Md. at 606, 69 A. 422.

One of the original cases to address this exception to the general rule of an employer's non-liability for injuries arising from the negligence of its independent contractor was Deford v. State, Use of Keyser, supra. Deford involved a contract to construct a building fronting a public street. While in the process of being erected, the cornice and a portion of the front wall fell upon and fatally injured a woman as she was passing by. The Court held that whether the contractor was an agent or an independent contractor, if it could be shown that the wall and cornice had been constructed in such a manner as to be dangerous to the public as they passed by and thus constituted a nuisance, then the owner of the property causing such condition to exist on his property would be liable for any resultant injury. The Court bottomed its holding on the rationale that "if the contractor does the thing which he is employed to do, the employer is responsible for that thing as if he did it himself." Id. 30 Md. at 205.

In Weilbacher v. Putts Co., supra, the grant of a directed verdict at the close of the plaintiff's case was challenged by a pedestrian who had been injured by a painter who had fallen off a scaffold. In affirming the judgment, the Court observed that the duty of an owner of property abutting a sidewalk, who employed an independent contractor to paint the outside of a building, does not require him to provide against all possible injury. The Court reasoned that to do so would impose an unreasonable burden upon property owners. The Court held that it is only such injury as may be reasonably anticipated that an owner-employer is bound to take...